Citation Nr: 9817007
Decision Date: 06/02/98 Archive Date: 06/15/98
DOCKET NO. 97-13 748 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Diego,
California
THE ISSUES
1. Entitlement to service connection for a seizure disorder.
2. Entitlement to service connection for hemorrhoids and
perianal fistula.
3. Entitlement to service connection for skin disorders to
include boils and blisters, due to chemical exposure.
4. Entitlement to service connection for a lung disorder due
to chemical exposure.
5. Entitlement to a permanent and total rating for
nonservice-connected pension purposes, to include
extraschedular consideration under the provision of 38 C.F.R.
§ 3.321(b)(2).
ATTORNEY FOR THE BOARD
John Z. Jones, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1974 to July
1979.
This matter has come before the Board of Veterans' Appeals
(Board) on appeal from a November 1996 rating decision of the
San Diego, California, Department of Veterans Affairs (VA)
Regional Office (RO).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that he incurred the
claimed conditions while on active duty. He also contends
that he is unable to work because of his disabilities.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran’s claims for
service connection for a seizure disorder, and hemorrhoids
and perianal fistula as well as his claims for skin disorders
and a lung disorder due to chemical exposure are not well-
grounded. The Board also finds that the preponderance of the
evidence is against the claim for a permanent and total
rating for nonservice-connected pension purposes, to include
extraschedular consideration under the provision of 38 C.F.R.
§ 3.321(b)(2).
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran’s appeal has been obtained.
2. The veteran has failed to submit evidence to justify a
belief by a fair and impartial individual that a claim of
service connection for a seizure disorder is plausible.
3. The veteran has failed to submit evidence to justify a
belief by a fair and impartial individual that a claim of
service connection for hemorrhoids and perianal fistula is
plausible.
4. The veteran has failed to submit evidence to justify a
belief by a fair and impartial individual that a claim of
service connection for skin disorders due to chemical
exposure is plausible.
5. The veteran has failed to submit evidence to justify a
belief by a fair and impartial individual that a claim of
service connection for a lung disorder due to chemical
exposure is plausible.
6. The veteran does not have a service-connected disability.
His nonservice-connected disabilities are hemorrhoids and
perianal fistula, evaluated as 10 percent disabling; a
seizure disorder, evaluated as noncompensably disabling; skin
disorders, including boils and blisters, due to chemical
exposure, evaluated as noncompensably disabling; and a lung
condition due to chemical exposure, evaluated as
noncompensably disabling.
7. The veteran has pain and a small drainage of blood and
fluid from the fistula of the left buttock. He has normal
sphincter tone. He also has mild internal hemorrhoids that
are asymptomatic.
8. There is no evidence that the veteran currently suffers
from a seizure disorder, a skin disorder or a lung disorder.
9. The veteran's disabilities are not productive of total
disability, either on an individual or cumulative basis, and
are not sufficient to render the average person unable to
follow a substantially gainful occupation.
10. The veteran's disabilities do not preclude him from
engaging in substantially gainful employment, consistent with
his age, education and occupational history.
CONCLUSIONS OF LAW
1. The veteran has not submitted a well-grounded claim of
service connection for a seizure disorder. 38 U.S.C.A.
§ 5107(a) (West 1991).
2. The veteran has not submitted a well-grounded claim of
service connection for hemorrhoids and perianal fistula.
38 U.S.C.A. § 5107(a) (West 1991).
3. The veteran has not submitted a well-grounded claim of
service connection for skin disorders to include boils and
blisters, due to chemical exposure. 38 U.S.C.A. § 5107(a)
(West 1991).
4. The veteran has not submitted a well-grounded claim of
service connection for a lung disorder due to chemical
exposure. 38 U.S.C.A. § 5107(a) (West 1991).
5. The requirements for a permanent and total rating for
non- service connected pension purposes, to include
extraschedular consideration under the provision of 38 C.F.R.
§ 3.321(b)(2) are not met. 38 U.S.C.A. §§ 1502, 1521, 5107
(West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.342, 4.15, 4.16,
4.17, Diagnostic Codes 6899, 7332, 7335, 7336, 7899, 8999
(1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Service Connection for a Seizure Disorder, Hemorrhoids
and Perianal Fistula, a Skin Disorder and a Lung Disorder
Factual Background
The service medical records show that the veteran was
hospitalized in January 1978 for possible seizure disorder.
He had apparently bitten his tongue and had an apparent
convulsion while showering, but there was no adequate
description by witnesses of the seizure, and the veteran had
no memory of the event. Neurological examination was normal,
and an electroencephalogram (EEG) was not diagnostic of
seizure disorder: it indicated a postictal focus which could
have been a technical error in the EEG process. After no
further seizures were reported for 3 months, a follow-up EEG
was normal. The revised evaluation was that the veteran had
experienced a possible fainting spell. The revised diagnosis
was “no seizure disorder,” and the veteran was returned to
full duty. The records show no complaints, treatment or
diagnosis of hemorrhoids or fistulas in the anal region.
There is one report that the veteran had a boil behind the
right earlobe in April 1978, with no subsequent reports of
complaints or treatment for this condition or any other
chronic skin problem. The records also reflect that the
veteran had no lung problems in service. On separation
examination in July 1979, clinical evaluation of his
neurologic system, anus and rectum, skin, and lungs and chest
was normal. Chest X-ray was also normal.
Post-service private and VA outpatient treatment records
indicate that in March 1992 the veteran was seen for
complaint of rectal pain and protrusion for the past week.
He gave a history of having a thrombotic hemorrhoid incised
in 1989-90. A small right lateral external hemorrhoid was
found in November 1992 and a thrombotic hemorrhoid was
excised in August 1994. Records dated from May to October
1996 show recurring treatment of incision and drainage for
perirectal abscesses/boils. A fistulotomy was performed
without complications in October 1996. Small internal
hemorrhoids were also noted.
A VA general medical examination was conducted in September
1996. At that time, the veteran reported that he had anal
itching without bleeding in 1975 but did not see a doctor.
He later was treated by a civilian physician. He currently
reported pain and a small drainage of blood and fluid from
the fistula of the left buttock. He also reported that he
was treated for sebaceous cysts behind both ears between 1984
and 1986, but these had not recurred since then. The veteran
did not complain of any lung condition. The examiner noted
that the veteran’s carriage, posture and gait were normal.
Anoscopic and rectal examination showed normal sphincter tone
with no bleeding or mass. There were mild internal
hemorrhoids that were asymptomatic. The examiner found no
residual problems associated with a sebaceous cyst behind the
ear, with well healed scar and no tenderness. The veteran
had normal skin turgor, with no petechiae. The respiratory
system was clear to percussion and auscultation.
On VA epilepsy and narcolepsy examination in September 1996,
the veteran reported that he had had no more seizures of the
type he had in the military, but did occasionally black out
and see spots before his eyes. He took no medication to
control seizures. Examination of the neurological system
revealed no abnormalities and an EEG was normal. The
diagnosis was seizure disorder by history.
In a statement received in November 1996, the veteran noted
that in service his military occupational specialty was heavy
equipment mechanic. He stated that he worked on engines,
hydraulics, and gears and that while working with this
equipment he was exposed to hydraulic oil, grease, parts
cleaners, diesel fuel and other hazardous chemicals.
Analysis
The threshold question that must be resolved with regard to a
claim is whether the veteran has presented evidence of a
well-grounded claim. See 38 U.S.C.A. § 5107(a); Murphy v.
Derwinski, 1 Vet.App. 78, 81 (1990). A well-grounded claim
is a plausible claim that is meritorious on its own or
capable of substantiation. See Murphy, 1 Vet.App. at 81. An
allegation of a disorder that is service connected is not
sufficient; the veteran must submit evidence in support of a
claim that would “justify a belief by a fair and impartial
individual that the claim is plausible.” See 38 U.S.C.A.
§ 5107(a); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992).
The quality and quantity of the evidence required to meet
this statutory burden of necessity will depend upon the issue
presented by the claim. Grottveit v. Brown, 5 Vet.App. 91,
92-93 (1993).
In order for a claim to be well grounded, there must be
competent evidence of a current disability (a medical
diagnosis); of incurrence or aggravation of a disease or
injury in service (lay or medical evidence); and of a nexus
between the in-service injury or disease and the current
disability (medical evidence). Caluza v. Brown, 7 Vet.App.
498 (1995).
Where the determinant issue involves a question of medical
diagnosis or medical causation, competent medical evidence to
the effect that the claim is plausible or possible is
required to establish a well-grounded claim. Grottveit v.
Brown, 5 Vet.App. 91, 93 (1993). Lay assertions of medical
causation cannot constitute evidence to render a claim well
grounded under 38 U.S.C.A. § 5107(a); if no cognizable
evidence is submitted to support a claim, the claim cannot be
well grounded. Id.
Accordingly, to establish a well-grounded claim, there must
be competent evidence of incurrence or aggravation of a
disease or injury in service, of a current disability and of
a nexus between the inservice injury or disease and the
current disability. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R.
§ 3.303.
In the instant case, the veteran essentially maintains that
he should be granted service connection for hemorrhoids and
perianal fistula. However, he has proffered no competent
medical evidence to substantiate his assertion that his
current disabilities were either incurred in or aggravated by
service. Neither has he proffered any competent medical
evidence which tends to show that his disabilities can be
attributed to service. As noted above, the service medical
records are negative for any complaint of or treatment for
hemorrhoids or perianal fistula. While the post-service
medical records show treatment for the conditions, they do
not provide any professional medical opinion which would
establish an etiological link between these disabilities and
the veteran’s period of military service. In view of the
absence of competent medical evidence demonstrating a nexus
between the disabilities and service, the claim for service
connection is not plausible and, therefore, not well-
grounded. Rabideau v. Derwinski, 2 Vet.App. 141, 143-44
(1992). Although the veteran believes that his disabilities
are related to service, his assertions of medical causation
alone are not probative because lay persons (i.e., persons
without medical expertise) are not competent to offer medical
opinions. Espiritu v. Derwinski, 2 Vet.App. 492 (1992).
Regarding the other claims for service connection, the
veteran has produced no probative or credible evidence that
he currently suffers from a seizure disorder, a skin disorder
or a lung condition. None of these disabilities was found on
the September 1996 VA examination. As stated previously, one
must demonstrate three elements to prove that a claim is well
grounded: a current disability, service incurrence or
aggravation, and a nexus. As the veteran has failed to
demonstrate the existence of the alleged disabilities, the
remaining two elements need not be discussed. In the absence
of proof of present disabilities there can be no valid
claims. Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992).
As noted above, the veteran may not rely on his own assertion
of present disability attributable to service. Espiritu v.
Derwinski, 2 Vet.App. 492 (1992).
Given the veteran’s failure to submit well-grounded claims,
the Board need not reach the benefit of the doubt doctrine.
38 U.S.C.A. § 5107.
II. Nonservice-Connected Pension
Initially, the Board finds that the appellant's claim is
“well-grounded” within the meaning of 38 U.S.C.A. § 5107.
The Board is also satisfied that all relevant facts have been
properly and sufficiently developed, and that no further
assistance to the veteran is required to comply with the
statutory duty to assist. 38 U.S.C.A. § 5107.
Under the provisions of 38 U.S.C.A. § 1521, pension is
payable to a veteran who served for ninety (90) days or more
during a period of war and who is permanently and totally
disabled due to non-service-connected disabilities which are
not the result of the veteran’s willful misconduct.
Permanent and total disability will be held to exist when an
individual is unemployable as a result of disabilities that
are reasonably certain to last throughout the remainder of
that person’s life. Talley v. Derwinski, 2 Vet.App. 282, 285
(1992); 38 C.F.R. §§ 3.340(b), 4.15.
There are three alternative bases upon which a finding of
permanent and total disability for pension purposes may be
established. One way is to establish that the veteran has a
lifetime impairment which is sufficient to render it
impossible for an “average person” to follow a
substantially gainful occupation under the appropriate
diagnostic codes of the VA Schedule for Rating Disabilities.
The “average person” standard is outlined in 38 U.S.C.A. §
1502(a)(1) and 38 C.F.R. §§ 3.340(a), 4.15. This process
involves rating and then combining each disability under the
appropriate diagnostic code to determine whether the veteran
holds a combined 100 percent schedular evaluation for pension
purposes. However, a veteran who suffers the permanent loss
of one or more limbs, or the sight in both eyes, or becomes
permanently helpless or permanently bedridden, will be
considered permanently and totally disabled for pension
purposes on a de facto basis. 38 C.F.R. § 4.15. Permanent
total disability evaluations for pension purposes may also be
authorized, provided other requirements of entitlement are
met, for congenital, developmental, hereditary or familial
conditions, as well as for disabilities that require
indefinite periods of hospitalization. 38 C.F.R. § 3.342(b).
Alternatively, a veteran may establish permanent and total
disability for pension purposes absent a combined 100 percent
schedular evaluation by proving that the individual (as
opposed to the average person) has a lifetime impairment
precluding the veteran from securing and following
substantially gainful employment. 38 U.S.C.A. § 1502,
1521(a); 38 C.F.R. § 4.17. Under this analysis, if there is
only one such disability, it must be ratable at 60 percent or
more, and; if there are two or more disabilities, there must
be at least one disability ratable at 40 percent or more,
with a combined disability rating of at least 70 percent.
However, even if a veteran cannot qualify for permanent and
total disability under the above rating scheme, a permanent
and total disability rating for pension purposes may be
granted on an extra-schedular basis if the veteran is
subjectively found to be unemployable by reason of his or her
disabilities, age, occupational background, and other related
factors. 38 C.F.R. §§ 3.321(b)(2), 4.17(b).
In denying entitlement to nonservice-connected pension
benefits in a rating decision entered in November 1996, the
RO assigned the veteran a 10 percent rating, under Diagnostic
Codes 7335-7336, for hemorrhoids and perianal fistula. The
RO also assigned noncompensable ratings for a seizure
disorder (Diagnostic Code 8999), skin disorders, including
boils and blisters, due to chemical exposure (Diagnostic Code
7899), and a lung condition due to chemical exposure
(Diagnostic Code 6899). The combined rating for the
veteran’s nonservice-connected disabilities was calculated to
be 10 percent.
As noted above, entitlement to pension benefits may be
objectively determined if the veteran is unemployable as a
result of permanent disabilities or if he experiences
disabilities which would preclude the average person from
following a substantially gainful occupation, if it is
reasonably certain that the disabilities are permanent.
38 U.S.C.A. § 1502; 38 C.F.R. § 4.15.
Turning to the case at hand, the veteran, essentially,
contends that he is unable to work because of his
disabilities. In association with his claim, the veteran was
accorded VA examinations in September 1996. At that time,
the veteran was noted to have normal sphincter control with
no bleeding or mass. There was mild tenderness on the left
buttock with sinus drainage of fluid and a amount of blood.
He also had mild internal hemorrhoids that were asymptomatic.
The examiner found no evidence of a seizure disorder, a skin
disorder or a lung condition.
Diagnostic Code 7335 provides that a fistula in ano is to be
evaluated according to the criteria for rectum and anus,
impairment of sphincter control under Diagnostic Code 7332.
Under this code, a 10 percent evaluation is provided for
constant slight or occasional moderate leakage. A 30 percent
rating is provided for conditions productive of occasional
involuntary bowel movements necessitating the wearing of a
pad, and a 60 percent rating is provided for conditions
involving extensive leakage and fairly frequent involuntary
bowel movements. A 100 percent rating is available for
complete loss of sphincter control. 38 C.F.R. § 4.114,
Diagnostic Codes 7332, 7335.
Under Diagnostic Code 7336, a noncompensable evaluation is
assigned for internal or external hemorrhoids which are mild
or moderate. A 10 percent rating is for assignment where
there are large or thrombotic hemorrhoids, which are
irreducible with excessive redundant tissue, and evidencing
frequent recurrences. A 20 percent evaluation is provided
for persistent bleeding with secondary anemia or fissures.
38 C.F.R. § 4.114, Diagnostic Code 7336.
Considering the above criteria and the findings on the 1996
VA examination, the Board concludes that the current 10
percent rating is for application for the veteran’s
hemorrhoids and perianal fistula. 38 C.F.R. § 4.114,
Diagnostic Codes 7332, 7335, 7336. The Board observes,
however, that there is no evidence currently of record
showing that a seizure disorder, a skin disorder or a lung
condition is present. Accordingly, the Board determines that
the veteran’s claims for a seizure disorder, a skin condition
due to chemical exposure and a lung condition due to chemical
exposure warrant noncompensable evaluations.
In the analysis set forth above, the Board has determined
that the ratings currently assigned the veteran’s nonservice-
connected disabilities are proper. In making these
determinations, the Board has afforded the veteran every
possible reasonable benefit of the doubt, as it is required
to do. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102, 4.3.
Assuming, without conceding, that each of the veteran’s
nonservice-connected disabilities is permanent in accordance
with 38 C.F.R. § 4.17, the veteran’s disabilities are
objectively determined not to be representative of a total,
100 percent schedular evaluation in accordance with 38 C.F.R.
§ 4.15. Accordingly, on the basis of the objective “average
person” standard of review, a permanent and total disability
evaluation is not warranted.
Furthermore, the veteran does not satisfy the criteria for a
schedular permanent and total evaluation under 38 C.F.R. §§
4.16(a) and 4.17. As the veteran has more than one
disability, he is required to have at least one disability
rated as at least 40 percent disabling in order to meet the
threshold requirement of Section 4.16(a). Since none of his
disabilities have been rated as at least 40 percent
disabling, the veteran cannot be considered permanently and
totally disabled on this basis.
The Board has considered whether a permanent and total
disability rating for pension purposes on an extra-schedular
basis may be authorized under 38 C.F.R. § 3.321(b)(2). With
respect to the subjective factors bearing on the veteran’s
possible entitlement to pension benefits, such as age,
education, and occupational background, the Board notes that
the veteran is 41 years old, is a high school graduate, and
has worked in the past for a food catering service. He has
completed courses in Real Estate and Welding Technology. He
asserts that he last worked in 1990.
The veteran maintains that he is unable to work due to his
disabilities. However, the claims file is devoid of clinical
evidence demonstrating limitation of function to the extent
that the veteran would be rendered unable to become employed.
For example, there is no indication that the veteran’s
disabilities have resulted in any loss of motion. More
importantly, the Board emphasizes that the veteran’s combined
disability ratings found the veteran to be only 10 percent
disabled. In addition, the record does not include evidence
of rejection or dismissal from employment as a result of his
disabilities. The Board notes that, while the veteran may
not able to be successfully employed in certain positions
which require sitting for prolonged periods, there is no
indication in the record that he is precluded from engaging
in all types of employment. The sole fact that a claimant
may be unemployed or have trouble finding employment is not
sufficient for a showing of unemployability. The question is
whether the veteran is capable of performing the physical or
mental acts required by employment, not whether the veteran
can find employment. Van Hoose v. Brown, 4 Vet.App. 361, 363
(1993). As a result, based on the veteran’s employment and
disability picture, the evidence of record does not show that
the veteran is unable to obtain substantially gainful
employment. Accordingly, entitlement to a permanent and
total disability rating for pension purposes, to include
extraschedular consideration under the provision of 38 C.F.R.
§ 3.321(b)(2), is denied.
ORDER
Entitlement to service connection for a seizure disorder is
denied.
Entitlement to service connection for hemorrhoids and
perianal fistula is denied.
Entitlement to service connection for skin disorders to
include boils and blisters, due to chemical exposure is
denied.
Entitlement to service connection for a lung condition due to
chemical exposure is denied.
Entitlement to a permanent and total rating for nonservice-
connected pension purposes, to include extraschedular
consideration under the provision of 38 C.F.R. § 3.321(b)(2)
is denied.
DEBORAH W. SINGLETON
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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